James Wilson, Of Government, The Legislative Department, Lectures on Law

1791Works 1:290--92, 414--15

The first remark, which I shall make on the structure of
the legislative power, is, that it ought to be divided. In support
of this position, which is, indeed, one of the most important
in both the theory and the practice of government,
many arguments may be advanced. Let me introduce one,
by the declaration of an admired judge, whose manly candour
must charm every generous mind. "It is the glory
and happiness of our excellent constitution, that, to prevent
any injustice, no man is concluded by the first judgment;
but that, if he apprehends himself to be aggrieved,
he has another court, to which he may resort for relief.
For my part, I can say, that it is a consideration of great
comfort to me, that, if I do err, my judgment is not conclusive
to the party; but my mistake may be rectified, and
so no injustice be done." Is less skill required--should less
caution be observed--in making laws, than in explaining
them? Are mistakes less likely to happen--are they less
dangerous--is it less necessary to prevent or rectify them,
in the former case, than in the latter? Which is most necessary?
to preserve the streams, or to preserve the fountain
from becoming turbid?

But the danger arising from mistakes and inaccuracies
is not the only nor the greatest one, to be apprehended
from a single body possessed of legislative power. It is impossible
to restrain it in its operations. No other power in
government can arrest the proceedings of that which
makes the laws. Let us suppose, that this single body, in a
lucky moment, should pass a law to restrain itself: in the
next moment, an unlucky one, it might repeal the restraining
law. Any mounds, which it might raise to confine itself,
would still be within the sphere of its own motion; and
whatever force should impel it, would necessarily impel
those mounds along with it. To stop and to check, as well
as to produce motion in this political globe, we must possess--what
Archimedes wanted--another globe to stand
upon.

A single legislature is calculated to unite in it all the pernicious
qualities of the different extremes of bad government.
It produces general weakness, inactivity, and confusion;
and these are intermixed with sudden and violent
fits of despotism, injustice, and cruelty.

But I will take the subject a little deeper: it is of the
utmost consequence that it be fully discussed. In private
life, how often and how fatally are we seduced, by our
passions and by our prejudices, from those paths, which
would lead us to our true interests? But are passions and
prejudices less frequently to be found in publick bodies,
than in individuals? Are they less powerful? Do they not
become inflamed by mutual imitation and example? Will
they not, if unrestrained, produce the most mischievous
effects? Ye, who are versed in the science of human nature--ye,
who have viewed it in the faithful mirrour of
history--tell us, for you know, what answer should be
given to these questions. Cannot you point out instances,
in which the people have become the miserable victims of
passions, operating upon their government without restraint?
Cannot you point out other instances, in which the
violence of one part of the government has been happily
controlled by the constitutional interposition of another
part?

There is not in the whole science of politicks a more
solid or a more important maxim than this--that of all
governments, those are the best, which, by the natural effect
of their constitutions, are frequently renewed or
drawn back to their first principles. When a single legislature
is determined to depart from the principles of the
constitution--and its incontrollable power may prompt the
determination--there is no constitutional authority to arrest
its progress. It may proceed, by long and hasty strides,
in violating the constitution, till nothing but a revolution
can stop its career. Far different will the case be, when the
legislature consists of two branches. If one of them should
depart, or attempt to depart from the principles of the
constitution; it will be drawn back by the other. The very
apprehension of the event will prevent the departure or
the attempt.

In all the most celebrated governments both of ancient
and of modern times, we find the legislatures composed of
distinct bodies. Such was that formed at Athens by Solon.
Such was that instituted at Sparta by Lycurgus. Such was
that, which so long flourished at Rome. In our sister states,
their legislatures consist of distinct bodies of men. Similar,
upon this subject, is the constitution of the United States.
And we can now happily say, that Pennsylvania no longer
exhibits an instance to the contrary--that she no longer
holds out to view a beacon to be avoided, instead of an
example deserving imitation.

. . . . .

Between the senate of the United States, and that of
Pennsylvania, there is one remarkable point of difference,
of which it will be proper, in this place, to take particular
notice. According to the constitution of the United States,
two senators are chosen by the legislature of each state:
while the members of the house of representatives are
chosen by the people. According to the constitution of
Pennsylvania, the senators are chosen by the citizens of the
state, at the same time, in the same manner, and at the
same place where they shall vote for representatives.

To choose the senators by the same persons, by whom
the members of the house of representatives are chosen,
is, we are told, to lose the material distinction, and, consequently,
all the benefits which would result from the material
distinction, between the two branches of the legislature.

If this, indeed, should be the necessary consequence of
electing both branches by the same persons; the objection,
it is confessed, would operate with a force irresistible. But
many and strong reasons, we think, may be assigned, why
all the advantages, to be expected from two branches of a
legislature, may be gained and preserved, though those
two branches derive their authority from precisely the
same source.

A point of honour will arise between them. The esprit
du corps will soon be introduced. The principle, and direction,
and aim of this spirit will, we presume, be of the
best and purest kind in the two houses. They will be rivals
in duty, rivals in fame, rivals for the good graces of their
common constituents.

Each house will be cautious, and careful, and circumspect,
in those proceedings, which, they know, must undergo
the strict and severe criticism of judges, whose inclination
will lead them, and whose duty will enjoin them,
not to leave a single blemish unnoticed or uncorrected. After
all the caution, all the care, and all the circumspection,
which can be employed, strict and severe criticism, led by
inclination and enjoined by duty, will find something to
notice and correct. Hence a double source of information,
precision, and sagacity in planning, digesting, composing,
comparing, and finishing the laws, both in form and substance.
Every bill will, in some one or more steps of its
progress, undergo the keenest scrutiny. Its relations,
whether near or more remote, to the principles of freedom,
jurisprudence, and the constitution will be accurately
examined: and its effects upon the laws already existing
will be maturely traced. In this manner, rash measures,
violent innovations, crude projects, and partial contrivances
will be stifled in the attempt to bring them forth.
These effects of mutual watchfulness and mutual control
between the two houses, will redound to the honour of
each, and to the security and advantage of the state.